Class Cert. Tentatively Denied in Kraft ‘Natural’ Cheese Lawsuit

Earlier this week, a California federal judge tentatively rejected consumers’ bid for class certification in a lawsuit alleging Kraft Foods falsely labeled certain cheese products as “natural,” stating that the case is more complicated that previously thought.

Purchasers of Kraft’s Natural Cheese Fat Free Shredded Cheddar Cheese allege that the company’s use of “natural” violates California consumer protection law.

Specifically, the plaintiffs claim that they would not have purchased the cheese had they known it contained artificial coloring. They motioned for partial summary judgment on the issue of liability under California’s unfair competition and false advertising statutes, attempting to carry the case to trial solely on issues of damages.

But U.S. District Court Judge John Kronstadt tentatively denied certification of the Class, maintaining that there are issues that still need to be worked out.

“I’m not persuaded that the plaintiff is carrying the burden of showing that there’s no genuine issue of material fact with respect to the term natural,” Judge Kronstadt said.

Under the U.S. Food and Drug Administration’s guidelines, a product can’t be called “natural” if the color has been altered – which means that even if the agent changing the color is natural by itself, it has to be called “artificial coloring.”

An attorney representing Kraft told the judge that the plaintiffs’ complaint is “premised on a fundamental misunderstanding” of the law’s definition of artificial coloring.

“They assume if you have artificial coloring it necessarily means artificial ingredients and therefore you can’t use the term natural,” Kraft’s counsel argued. “But, your honor, the FDA has made clear that the term artificial coloring is just a term of art, that it just means you add coloring to a product. It can mean an artificial ingredient or a natural ingredient.”

Kraft attorneys also asserted that the use of the term artificial color simply means there is “color additive” and doesn’t apply to the natural ingredients at the heart of the issue in this case. Kraft contends that the coloring used in Natural Cheese Fat Free Shredded Cheddar Cheese is derived from a seed substance.

The attorneys also state that according to FDA guidelines vegetables, animals, and minerals are “natural ingredients and that only color additives such as “Yellow Dye No. 5” which are purportedly not contained in the Kraft products at issue are “true artificial ingredients” and don’t qualify as “natural” under the FDA.

According to FDA policy, there is no restriction on the use of the term “natural” except for added color, synthetic substances, and flavors.

On the other hand, plaintiffs’ attorney disputed Kraft’s claims, expressing to the court that this is “absolutely not the case,” citing federal regulations that a color additive containing natural elements may be in a product that’s packaged as natural.

Moreover, the plaintiffs’ counsel argued that the FDA identifies titanium dioxide (the seed substance from which Kraft’s cheese color is allegedly derived), as “synthetically prepared” color additive for which Kraft has failed to provide substantiating evidence.

California residents Claudia Morales and Mocha Gunaratna brought the proposed class action lawsuit against Kraft Foods Group in 2014.

As purchasers of Kraft Natural Fat Free Shredded Cheddar Cheese, one of a variety of “Kraft Natural Cheese” products, they allege Kraft sold and distributed cheese products with the label “natural” although the products contained artificial ingredients, specifically, artificial color.

They claim to have purchased the “natural” cheese products several times since May 2010 at various California grocery stores based on Kraft’s representations that the cheese was “natural.”

On June 24, 2015, U.S. District Judge John A. Kronstadt partially granted a motion for class certification for consumers who bought the Kraft cheese products since May 2010 who were “misled” by the “natural cheese” representation on the products.

However, earlier this year, the FDA invited public input on the use of the term “natural” in regards to food product labeling, essentially compelling Judge Kronstadt to temporarily deny class certification until the FDA makes an administrative determination of the term.

“Although the FDA has not engaged in rulemaking to establish a formal definition for the term ‘natural,’ we do have a longstanding policy concerning the use of ‘natural’ in human food labeling,” the federal agency wrote to the public on its website. “The FDA has considered the term ‘natural’ to mean that nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in that food.”

The plaintiffs are represented by Paul D. Stevens and Shireen Mohsenzadegan of Milstein Adelman LLP and Shireen M. Clarkson and Ryan J. Clarkson of Clarkson Law Firm.

The Kraft Natural Cheese False Labeling Class Action is Claudia Morales, et al. v. Kraft Foods Group Inc., Case No. 2:14-cv-04387, in the U.S. District Court for the Central District of California.

UPDATE: On Sept. 5, 2016, the plaintiffs in a Kraft class action lawsuit say Kraft’s motion for summary judgment should be denied now that enough evidence is in the record to show the company may have labeled some of its products deceptively.

UPDATE 2: On Dec. 6, 2016, Kraft lost its renewed motion to stay a consumer class action lawsuit over claims it falsely marketed its shredded fat free cheddar cheese as “natural” when it allegedly contains artificial ingredients, flavor, and coloring.

UPDATE 3: On February 15, 2017, Kraft filed a motion to decertify the class action lawsuit which alleges the company does not use “all natural” ingredients.